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Nevada Restaurant Services, Inc. v. Clark County

United States District Court, D. Nevada

February 26, 2018

CLARK COUNTY, a Municipal Corporation, and Does I through X, Defendants.



         Pending before the Court is the Motion for Summary Judgment, (ECF No. 67), filed by Defendant Clark County (the “County”). Plaintiff Nevada Restaurant Services, Inc. (“Plaintiff”) filed a Response, (ECF No. 82), and the County filed a Reply, (ECF No 86).

         Also pending before the Court is the Motion for Partial Summary Judgment, (ECF No. 74), filed by Plaintiff. The County filed a Response, (ECF No. 83), and Plaintiff filed a Reply, (ECF No. 88). For the following reasons, the Court GRANTS the County's Motion for Summary Judgment and DENIES Plaintiff's Motion for Partial Summary Judgment.[1]

         I. BACKGROUND

         Plaintiff owns gaming and drinking establishments in Clark County, Nevada, that operate as taverns under “Class A” gaming licenses. (Am. Compl. ¶ 13, ECF No. 60). These Class A licenses “permit[ ] the operation of a total of fifteen or fewer slot machines incidental to the primary business at the establishment wherein the slot machines are to be located.” Clark County Code (the “Code”) § 8.04.040(B)(3) (emphasis added); (see Depo. Of Allison Gigante 22:21-24:3, Ex. A to Am. Compl., ECF No. 63).

         Following a proliferation of businesses operating under a Class A license, the Clark County Board of County Commissioners (the “Board”) passed an amendment to its tavern laws (the “2011 Ordinance”) effective April 9, 2011. (Bill No. L-3-1-1 l-3(A)/Ordinance No. L-252-11, Ex. I to County's Mot. for Summ. J. (“MSJ”), ECF No. 67). The 2011 Ordinance required that taverns operating under Class A limited gaming licenses have a bar and at least eight slot machines “embedded” in the bar. Code § (Apr. 19, 2011). Taverns licensed “at the same location” prior to December 22, 1990, were exempted from the new requirement. Id.

         After some problems with enforcement of the 2011 Ordinance, the Board amended the Code by passing Ordinance L-256-14 (the “2014 Ordinance”) on December 3, 2014. See Code § The 2014 Ordinance requires taverns to maintain bars with a minimum height of forty inches and to operate a minimum number of slot machines as “bartop machines.”[2] Code § Alternatively, a tavern may comply if less than fifty-percent of its revenue is derived from slot machines. Code § A tavern need not comply with these provisions if it either operates seven or fewer slot machines or qualifies as a grandfathered tavern. Code § According to the Code, a “grandfathered tavern” is:

(i) A tavern licensed for fifteen or fewer slot machines, the application for which was pending or approved prior to [December 8, 2006]; or
(ii) Any tavern which, as of December 2, 2014, operated more than fifty percent of the slot machines on its premises as bartop machines, regardless of the height of such bartop machines located in a bar . . . .

Code §

         In January 2015, Director Jacqueline Holloway of the Department of Business License for Clark County (“Director Holloway”) sent Plaintiff letters (the “January Letters”) stating that nineteen of Plaintiff's tavern locations were grandfathered in under the 2014 Ordinance. (See Ex. B-13 to Am. Compl., ECF No. 63). Then in February 2015, Director Holloway sent Plaintiff a letter (the “February Letter”) that confirmed exempted locations that were grandfathered taverns under the terms of the 2014 Ordinance. (See Ex. B to Am. Compl.). The February Letter reflected Director Holloway's interpretation that, like the 2011 Ordinance, exemption under the 2014 Ordinance depended on the date the tavern location first received a gaming license. (Id.). Plaintiff complied with retrofitting the taverns that were not considered grandfathered according to the February Letter. (Am. Compl. ¶¶ 47).

         On October 28, 2015, Plaintiff received an additional letter from Director Holloway (the “October Letter”) (collectively the “letters”) stating that “previous notifications concerning the grandfathered status of [Plaintiff's] taverns . . . must be revised.” (See Ex. B to Am. Compl.). Director Holloway revised her interpretation and concluded that the application date of “current ownership, ” rather than tavern location, determined grandfathered status. (Id.). Pursuant to this, “the majority of [Plaintiff's] locations lost their grandfathering status as of the date of [Director] Holloway's October 28, 2015 letter.” (Pl.'s MSJ 11:12-14).

         Rather than complying with the 2014 Ordinance, Plaintiff filed the instant case seeking a petition for writ of mandamus and judicial review, and alleging violations of due process and § 1983. (See generally Am. Compl.). Additionally, Plaintiff alleges that the County has “arbitrarily and capriciously denied [Plaintiff's] locations the package liquor licenses it regularly grants other taverns” pursuant to Code § (Am. Compl. 18:7-8). Plaintiff alleges this claim under its petition for writ of mandamus, judicial review, and due process causes of action. (Am. Compl. at 19-25).

         On February 10, 2016, Plaintiff filed a Motion for Preliminary Injunction, (ECF No. 6), which the Court later denied, (ECF No. 27). The County filed its opposition to Plaintiff's Motion for Preliminary Injunction and included in its opposition a Motion to Dismiss Plaintiff's claims related to the 2014 Ordinance. (See generally Mot. to Dismiss (“MTD”), ECF No. 14). On March 23, 2017, the Court granted the County's Motion to Dismiss and granted Plaintiff leave to amend, (ECF No. 58). Plaintiff filed its Amended Complaint, (ECF No. 60), on April 13, 2017, and the County filed the instant Motion for Summary Judgment, (ECF No. 67), on May 12, 2017. On May 15, 2017, Plaintiff filed the instant Motion for Partial Summary Judgment, (ECF No. 74).


         The Federal Rules of Civil Procedure provide for summary adjudication when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Material facts are those that may affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. See Id. “Summary judgment is inappropriate if reasonable jurors, drawing all inferences in favor of the nonmoving party, could return a verdict in the nonmoving party's favor.” Diaz v. Eagle Produce Ltd. P'ship, 521 F.3d 1201, 1207 (9th Cir. 2008) (citing United States v. Shumway, 199 F.3d 1093, 1103-04 (9th Cir. 1999)). A principal purpose of summary judgment is “to isolate and dispose of factually unsupported claims.” Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).

         In determining summary judgment, a court applies a burden-shifting analysis. “When the party moving for summary judgment would bear the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial. In such a case, the moving party has the initial burden of establishing the absence of a genuine issue of fact on each issue material to its case.” C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (citations omitted). In contrast, when the nonmoving party bears the burden of proving the claim or defense, the moving party can meet its burden in two ways: (1) by presenting evidence to negate an essential element of the nonmoving party's case; or (2) by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element essential to that party's case on which that party will bear the burden of proof at trial. See Celotex Corp., 477 U.S. at 323- 24. If the moving party fails to meet its initial burden, summary judgment must be denied and the court need not consider the nonmoving party's evidence. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 159-60 (1970).

         If the moving party satisfies its initial burden, the burden then shifts to the opposing party to establish that a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). To establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 631 (9th Cir. 1987). In other words, the nonmoving party cannot avoid summary judgment by relying solely on conclusory allegations that are unsupported by factual data. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Instead, the opposition must go beyond the assertions and allegations of the pleadings and set forth specific facts by producing competent evidence that shows a genuine issue for trial. See Celotex Corp., 477 U.S. at 324.

         At summary judgment, a court's function is not to weigh the evidence and determine the truth but to determine whether there is a genuine issue for trial. See Anderson, 477 U.S. at 249. The evidence of the nonmovant is “to be believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255. But if the evidence of the nonmoving party is merely colorable or is not significantly probative, summary judgment may be granted. See Id. at 249-50.

         III. ...

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